Expert Analysis

• DOJ Directive Gives Contractors A Fraud Risk Road Map

  

  For government contractors, the 10 factors described in the U.S. Department of Justice's recent corporate fraud enforcement directive function as a de facto scoring rubric for internal audits that mirrors what prosecutors will prioritize, say attorneys at Spencer Fane.

• Key Risk Assessment Gaps To Note From NY Cyber Guidance

  

  Covered entities should take a fresh look at the compliance gaps flagged in recent New York State Department of Financial Services guidance on "deficient cybersecurity programs," particularly around scope, asset inventories and documentation, say attorneys at Mayer Brown.

• Tort Liability When AI Goes Rogue: Strict Liability

  

  If artificial intelligence agents misbehave in unpredictable ways, and no reasonable precaution can prevent resulting harms, then a negligence regime may not provide sufficient remedy, and strict liability might be adapted to cover agents' misconduct — but the common notion of strict liability fits this situation imperfectly, says Donald Hawthorne at Carter Ledyard.

• Where SEC's Transfer Agent Plan Would Change Compliance

  

  The U.S. Securities and Exchange Commission’s recent proposal to update the federal regulatory framework for transfer agents would comprehensively modernize the old task-specific regime by centering speed, operational resilience, compliance governance and technology-neutral recordkeeping, say attorneys at Morgan Lewis.

• Open Issues After 2nd Circ.'s Airport Phone Search Ruling

  

  While the Second Circuit’s recent U.S. v. Alisigwe decision confirms border agents' broad authority to conduct routine manual cellphone searches at ports of entry, significant questions remain about more wide-ranging forensic searches at the border, say attorneys at Baker Botts.

• FTC's Changing Model Raises Questions About Its Mission

  

  Federal Trade Commission leaders have recently sketched a vision of an agency that continues an enforcement role distinct from the U.S. Department of Justice's, even as a shift toward greater presidential control makes enforcement more responsive to changes in administrations, say attorneys at Wiley.

• 2nd Circ. EFAA Ruling Shifts Employer Litigation Strategy

  

  In Diaz-Roa v. Hermes Law, the Second Circuit recently held that, under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, employers can't carve out nonharassment claims and send them to arbitration, which has implications for discovery, litigation costs and resolution strategy in EFAA-covered disputes, say attorneys at Krevolin Horst.

• The Future Of PCAOB Enforcement After Post-Jarkesy Win

  

  While the Public Company Accounting Oversight Board recently defeated procedural and structural challenges to its enforcement program in D.C. federal court, it's unclear what claims and sanctions the PCAOB can bring against respondents — and whether it's interested in instituting disciplinary proceedings generally, says Mike Plotnick at King & Spalding.

• Tort Liability When AI Goes Rogue: Negligence Theory

  

  If reasonable care in the use of artificial intelligence agents cannot eliminate the risk of third-party harm, then AI companies and users of AI agents must consider whether negligence theory provides an adequate framework for assessing harm caused by agents that go rogue, says Donald Hawthorne at Carter Ledyard.

• DC Circ. Ruling Clarifies Standards For Buy America Waivers

  

  The D.C. Circuit's recent decision to uphold a Federal Railroad Administration Buy America waiver offers clarifying guidance about assessing domestic availability, distinguishing manufacturing capabilities from future production plans and creating a well-supported administrative record, says Todd Overman at Bass Berry.

• How Senate-Passed Bill May Reshape NCAA Antitrust Liability

  

  With the U.S. Senate's recent passage of the Protect College Sports Act, practitioners should not wait for the U.S. House of Representatives' approval to prepare for shifts in potential antitrust protections, compensation, media rights deals and conference mergers, say attorneys at Norton Rose.

• Uniting BSA, Sanctions Compliance As Treasury Targets Iran

  

  The past 18 months of Treasury Department policies demonstrate expectations that financial institutions not merely obey sanctions against Iran, but also help expose how it moves money, making it essential that banks eliminate silos between their Bank Secrecy Act and sanctions compliance teams for an integrated response, says Jonathan Harrington at Bradley Arant.

• Digging Into Dems' Letter On Subpoena Secrecy Demands

  

  Lawmakers’ recent letter arguing that federal agencies’ use of boilerplate nondisclosure language in subpoenas pressures recipients into silence may lead to a significant overhaul of the current framework, but in the meantime, companies should review their rights and options, say attorneys at Crowell & Moring.

• How Bank Lobby's Suit Tests OCC's Crypto Charter Powers

  

  The Independent Community Bankers of America’s recent lawsuit challenging the Office of the Comptroller of the Currency’s ability to charter cryptocurrency companies marks another chapter in the struggle over the appropriate regulatory framework for digital assets, while raising a classic administrative law question at its most basic level, say attorneys at Ballard Spahr.

• 4 Steps For Cos. Amid Russia Sanctions Law Uncertainty

  

  Russian companies, their U.S. subsidiaries and businesses with Russian commercial relationships should take concrete steps to determine their exposure under ambiguous provisions of legislation that recently expanded the scope of U.S. sanctions, notwithstanding an Oct. 16 executive order waiving most of its restrictions, say attorneys at Wilk Auslander.